The Constitution guards its elections with a wall. Article 329(b) tells the courts to stand aside once the poll process begins. The design is deliberate. An election must not stall while judges weigh passing grievances. The contest has its own momentum, and finality is its virtue. Yet a wall raised to keep disruption out can also seal a wrong in. What happens when the injury occurs at the threshold itself? And what if the only sanctioned cure arrives long after the seat is filled?

The settled rule is old and plain. Since N.P. Ponnuswami v. Returning Officer (1952), a wrongly rejected nomination is not litigated by writ. It waits for an election petition after the result. The bar is near absolute. Article 329(b) opens with the phrase “notwithstanding anything in this Constitution”. Those words displace even Articles 32 and 226.

That rule met a hard case this fortnight. On June 12, the Supreme Court dismissed the writ petition of Meenakshi Natarajan, a Congress nominee for the Rajya Sabha from Madhya Pradesh. The returning officer had rejected her nomination on June 9 for an incomplete affidavit. With no rival left, Section 53 of the Representation of the People Act (RPA), 1951, required the three ruling-party nominees to be declared elected. That happened on June 11. The court heard her the next day, after the contest had closed.

The rejection turned on disclosure. Section 33A of the RPA (1951) is narrow. It obliges disclosure of a pending case only where a court has framed charges for an offence punishable with two years or more. The complaint against Natarajan was private, and not really about her. A woman alleged that a Congress functionary had molested her in 2022. She said her demands for party action went unanswered.

Natarajan, the party’s in-charge for Telangana, was arrayed as the fourth accused. The charge against her was inaction on that grievance. She figured in only two paragraphs of the complaint. She took charge of Telangana in 2025, three years after the alleged incident. A pre-cognisance notice was issued to her under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (2023). That section requires the accused to be heard before cognisance. In her affidavit she marked the entry “not applicable”, since no charge had been framed. A ruling-party functionary, Rahul Kothari, objected at the scrutiny stage. The returning officer agreed with him.

There is irony in the rule invoked against her. Mandatory disclosure of antecedents was not a legislative gift. It grew from a line of cases on the voter’s right to know. Union of India v. Association for Democratic Reforms (2002) began it. When Parliament tried to dilute that ruling, the court struck the dilution down in People’s Union for Civil Liberties v. Union of India (2003). The right to know a candidate’s record became part of free speech under Article 19(1)(a).

The purpose throughout was to inform the electorate. It was never to disqualify. Public Interest Foundation v. Union of India (2018) confirmed this. A Constitution Bench held there that framed charges do not bar a candidate. The cure for criminality in politics lay in disclosure and publicity, not exclusion at the gate. Yet here a pre-cognisance complaint, far short of framed charges, became a ground to reject. A shield meant for the voter turned into a sword against the candidate.

Senior advocate Mukul Rohatgi urged before the Supreme Court that the 2018 turn requires disclosure of every pending case. Whether Form 26 can demand more than Section 33A is the open question. Form 26 is the sworn affidavit a candidate files with the nomination paper—prescribed under Rule 4A of the Conduct of Elections Rules, 1961, and tied to Section 33A of the RPA (1951). It carries three kinds of disclosure—criminal antecedents, assets and liabilities, and educational and income details.

The knot in Natarajan’s case sits in the first of these—the respondents read Form 26 as demanding every pending case regardless of stage, while Section 33A bites only once charges are framed. The returning officer read the threshold differently. His order recorded that the magistrate had taken cognisance and summoned her. Natarajan’s senior counsel, Abhishek Manu Singhvi, answered on two levels. He doubted that cognisance had been taken. Even if it had, he said, Section 33A bites only once charges are framed. The Supreme Court said nothing on the merits, lest it prejudice a later election petition.

No room for exceptions

The dismissal rested on jurisdiction alone. Singhvi argued that a manifest and glaring error must invite immediate correction, or the poll’s sanctity suffers. The Supreme Court bench which heard the case asked for a precedent where the court had intervened at that stage. Singhvi conceded that the bar was the general rule, not an absolute one. The bench declined the invitation. It refused to sort nomination disputes into two classes, one fit for the writ court and the other for an election petition. Such a gradation, it held, finds no warrant in Article 329(b). To read it in would add an exception the Constitution withheld.

Singhvi had a respectable reply. He read paragraph 34 of Mohinder Singh Gill v. Chief Election Commissioner (1978). A returning officer who throttles a contest prevents an election, that passage says, rather than holds one. He joined Election Commission of India v. Ashok Kumar (2000), which accepts that a court may act to aid a poll, not arrest it. To set aside a void rejection, he said, would restore a contest. Democracy rests on plurality, he urged, and the law should preserve electoral choice, not narrow it. The commission and the court should facilitate a poll, not frustrate it. He pointed to Article 324 as a reservoir of power to keep a poll free. He pressed the point with a rhetorical example. A returning officer who declares that two plus two make six should not be immune until the term runs out.

He went higher still. A non-level playing field, he argued, offends the basic structure. He invoked Indira Nehru Gandhi v. Raj Narain (1975), where free and fair elections were held a basic feature. The court, he urged, is the sentinel on the qui vive. When a fact reaches it at speed, it should grant relief, not retreat into technicality. He also faulted the commission. Once the court was seized, the result was declared, which made the petition infructuous. The argument has weight.

A remedy that may arrive too late

Here lies the difficulty the order leaves untouched. The election petition is the prescribed cure. In practice it is slow. The statute asks for disposal within six months. Singhvi noted that such petitions often linger for years. A Rajya Sabha term runs six years. Justice P.K. Mishra of the Supreme Court bench recalled the recent Madras High Court order in Appavu, where a winner in the 2016 assembly election was declared a full decade late. A remedy that outlives the office it concerns is a remedy in name only.

The court’s reasoning rests on principle, not avoidance. The respondents read the same Mohinder Singh Gill against her. They cited its paragraph 92, on the bar to mid-poll interference. The Solicitor General sought to intervene for the State. The court declined, finding the State had no part in the election. Rohatgi leaned on the non-obstante clause in Article 329.

Its opening words, he said, oust Articles 32 and 226 from the poll. Ponnuswami had already held that an improper rejection invites no writ, only an election petition. He also reminded the bench that the right to contest is statutory, not fundamental. The proposition is fixed in Jyoti Basu v. Debi Ghosal (1982). Without a fundamental right, Article 32 has little to grip. Manda Jaganath v. K.S. Rathnam (2004) pointed the same way. The respondents added a practical fear. If glaring errors invite the writ while ordinary ones go to an election petition, every rejected candidate will plead his case as glaring. Forum-splitting would follow. Finality, the value the bar protects, would erode.

That fear is real. Yet it shows only that a clean line is hard to draw. It does not show that none is needed. The bar exists to keep elections moving and to send disputes to the High Court on an election petition. Its premise is that the channelled remedy works. When the channel is clogged, the premise fails. A rule meant to secure timely justice cannot be read to guarantee its denial.

The repair lies less with the courts than with Parliament and the commission. Disputes over rejected nominations could go on a true fast-track, opened and closed within the poll calendar. The disclosure rules could be clarified. A returning officer should not convert a contested point of criminal procedure into a disqualification. The Supreme Court left the Form 26 question open, and wisely so, for the High Court hearing the election petition. It should not stay open for long. Whether a pre-cognisance complaint must be disclosed is a question of general importance. It will recur.

The rule that keeps courts out of a running election is sound in design. The bench read the rule as admitting no exception, not even for a glaring error. That reading is contestable. The court’s previous rulings suggest that it may act to aid a poll, not arrest it. To undo a brazen rejection is not to question an election. It is to let one happen. Where the injustice at the gate is gross, a court should be free to step in. The rule was meant to prevent disruption, not to shield a manifest wrong.

V. Venkatesan is Contributing Editor at Supreme Court Observer. Views expressed are personal.

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